Liability Argued In Child-on-child Abuse

FORSYTH, Ga. — LaShonda Davis was only 10 when she came home from school six years ago and told her mother that a 5th-grade classmate had been "messing" with her.

Uncomprehending at first, Aurelia Davis asked her daughter to be more specific. The boy had tried to grab her breasts and touch other parts of her body, LaShonda said with embarrassment. He had threatened to do more and had told her, "I want to get in bed with you."

LaShonda, an honor-roll pupil, said she had reported the incident to her teacher. When Aurelia Davis called the teacher that evening, she was assured the principal had been notified too.

But if he was, Principal Bill Querry gave no indication. According to the complaint Davis eventually filed in federal court, such incidents occurred repeatedly over the next five months and school authorities did nothing to stop them, although LaShonda told at least three different teachers.

Frightened by the near-constant harassment and depressed because the adults around her seemed not to take her concerns seriously, the child finally told her mother, "I think I need a lawyer."

LaShonda, now 16 and a junior at Monroe County High School, has tried hard to put 5th grade behind her. She finally will get her day in court -- U.S. Supreme Court -- on Tuesday.

The outcome of her case likely will determine whether schools across the nation have an obligation to protect students from sexual harassment by other students and whether they can be forced to pay damages when they fail.

The court's ruling, expected this spring, could affect millions of students. According to recent studies, more than 80 percent of upper-grade students report having experienced some form of sexual harassment, mostly from fellow students. Girls experience it at a higher rate than boys, one study said; and it tends to have a stronger emotional impact on girls, causing many to lose interest in school and hurting their academic performance. The study also noted that African-American girls such as LaShonda tend to experience sexual harassment before they reach 6th grade.

Under Title IX of the 1972 Education Amendments, schools that receive federal funds may not discriminate against students on the basis of sex. Sexual harassment is recognized as a form of sex discrimination, and the Supreme Court has said schools can be held liable under Title IX when a teacher or other school employee harasses a student as long as the school knew about the harassment and acted with "deliberate indifference."

Davis contends the same principle should hold when the harassment is inflicted by a fellow student if school officials knew it was going on and did nothing to stop it.

"We think the statute on its face would cover this," said Verna Williams of the National Women's Law Center, who will argue Davis' case before the justices. "It guarantees that persons not be subjected to discrimination. When a school refuses to address five months of repeated attempts to touch a student's genitals and five months of vulgar comments, it subjects that student to discrimination."

The Monroe County school board argues that Title IX does not cover student-to-student sexual harassment, and two lower courts have agreed.

Congress' intention was to eliminate gender discrimination in school admissions and in the employment decisions of school administrators, attorney W. Warren Plowden Jr. argues in his brief to the Supreme Court. The statute is aimed at recipients of federal grants, he says, not at students or other third parties.

The school board also argues there were no federal rules on sexual harassment in the schools during the 1992-93 school year, when LaShonda's complaint arose. "The Monroe County school district should not be exposed to damage suits based on the retroactive application of federal guidelines that did not exist until 1997," the brief says.

Some officials worry that facing potential federal liability won't make schools do a better job of preventing student-to-student harassment but might make them overreact, treating every minor transgression as a federal offense.

"Asking courts to second-guess teachers' disciplinary decisions won't solve the problem," said Julie Underwood, general counsel for the National School Boards Association, which filed a friend-of-the-court brief in the Davis case. "We could be spending all our time litigating cases instead of educating children."

What's more, she said, "giving monetary damages to a student really penalizes taxpayers and other students."

In any case, Underwood said, there are other remedies available when schools fail to protect children from other children, including "a private lawsuit against the offending student and his parents, a formal complaint to the school board . . . and, as in this case, involvement of the juvenile justice system."